PERSONAL LAW

Madras High Court on Limits to Rights of Foreign Nationals

Gilles Pfeiffer, Petitioner v. Union of India and others, Respondents.

Shivaraj Patil, J.

Foreigners Act (31 of 1946), Section 3-Expelling foreigner from country Passing of order by Government-Foreigner have no right to claim stay in country much less a fundamental right - Said order cannot also be challenged on ground of violation of principles of natural justice.

Petitioner being a foreigner has no fundamental right under Article 19(1)(e) of the Constitution. The Act of 1946 vests the Central Government with the absolute and unfettered discretion and unrestricted right to expel a foreigner. There is no dispute that the petitioner is a foreigner. Once the application of the petitioner seeking extension of his stay in the country is rejected, he shall have no right to claim to stay in the country, much less a fundamental right. Further the impugned order is not vitiated on the ground that either it is not a reasoned order or that it is one passed in violation of the principles of natural justice. The petitioner being a foreigner, cannot claim that there was violation of the principles of natural justice in passing the impugned order.

It is not a case of deprivation of life or personal liberty of a person within the meaning of Article 21 of the Constitution. The petitioner is not an accused and is not to be tried before any criminal Court. Even in the absence of any such application for extension of stay, the Central Government was competent under the 1946 Act to pass an order deporting the petitioner without affording any opportunity, and in that event the petitioner could not claim any violation of the principles of natural justice. The Central Government in regard to foreigners, either who enter the country without the necessary permission or authority, or remain in the country, after the expiry of the period for which permission is granted, could straightway take necessary action, to deport such persons from the country without there being anything more.

 (Source: AIR 1996 Madras 322)

Nirmalya Banerjee on Santhal Minority in Bodoland

Incidents of arms snatching by Santhals in Kokrajhar and Dhubri districts of Assam have become "a matter of concern" with the authorities. Since the beginning of the ethnic violence between Santhals and Bodos in May, there are reports that Santhals are organizing themselves in a militant fashion. The district authorities have received reports that some leaders of the CPI(ML) and the United Revolutionary Movement Council of Assam are campaigning among the Santhals, particularly in the Srirampur area, near the inter-state boundary.

Immediately after the riots, Santhals youths could be seen moving in groups in the relief camps, armed with bows and arrows. These were used in attacking the Bodos as well. Subsequently, the Army and para-military forces.

Asghar Ali Engineer on Triple Divorce

In India, pronouncing triple divorce in one sitting is, unfortunately, widely prevalent among the Sunni Hanafi country. A close study clearly shows that it is not at all Muslims. It is part of the Muslim personal law in this an Islamic way of pronouncing divorce.

Firstly, it is not mentioned in the Koran at all (the Koran mentions divorce in three separate periods, not at one time or in one sitting itself). Secondly, marriage is a ghaliz i.e. firm agreement). A contract between two contracts in Islam (the Koran describes it as a mitbaq al- parties can be entered into with mutual agreement (in Islam, marriage cannot take place without the specific consent of the woman) and, therefore, it cannot be dissolved without mutual consent.

How then can a unilateral divorce be valid? If a contract is validated through mutual agreement, it cannot be dissolved unilaterally. Thus, triple divorce, which is absolutely unilateral, cannot be Islamic in spirit.

There has never been any unanimity among Muslims over triple divorce. The Shia Muslims maintain that one cannot pronounce more than one divorce at a time. The Ismailis also reject the concept of triple divorce in one on this issue. The Hanbalis do not accept it. The Hanbali sitting. Among the Sunnis as well, there is no unanimity Imam, Ibn Taymiyyah, wrote a book arguing against it. He vehemently rejected the very concept as un-Islamic and suffered greatly for his views.

Ahl-e-Hadith, among the Sunnis, also do not accept triple divorce. Ahl-i-Koran also reject it as un-Koranic.  Even the Sunni Hanafi Muslims, who practice it, consider it as a talaq-i-bid'ah (i.e. sinful form of divorce).

Many Muslim countries, including Pakistan, have used a verse of the Holy Koran to make arbitration compulsory. Thus, there is no place for triple divorce in one sitting at all. There is no certainty in hadith literature as well about the validity of triple divorce in one sitting. There are serious differences on the issue. There is no unanimity on this core... The concept of three divorces given together is against the Book of Allah. Even hadith literature is far from unanimous in upholding its validity. Triple divorce is totally against the Koranic spirit. Its validity is not proved by the Prophet's Sunna.

There is, therefore, no point in retaining it as a part of Muslim personal law. The Muslim Personal Law Board should itself take the initiative to abolish it and replace it with the more just form of talaq mentioned in the Koran. which (alone) is divine, not the opinion of jurists and the ulema seized the bows and arrows in the camps but sporadic incidents followed in which Bodos were killed.

Santhals youths in the camps, however, deny attempts by Santhals to arm themselves in an organized fashion. But (they) demand that some Bodo organizations, equipped with firearms, should be disarmed.

 (Source: The Times of India, 5 August, 1996)